SENATOR Amstutz
A BILL
To enact section 2913.042 of the Revised Code to
regulate the transmission of electronic mail
advertisements.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 2913.042 of the Revised Code be
enacted to
read as follows:
Sec. 2913.042.
(A)
As used in this section:
(1)
"Advertisement" has the same meaning as in section
4931.55 of the Revised Code.
(2) "Computer," "computer network," "computer program," and
"computer software" have the same meanings as in section
2913.01
of the Revised Code.
(3) "Electronic mail" means an electronic message that is
transmitted between two or more computers or electronic terminals,
whether or not the message is converted to hard copy format after
receipt, and whether or not the message is viewed upon the
transmission or stored for later retrieval. "Electronic mail"
includes electronic messages that are transmitted through a local,
regional, or global computer network.
(4) "Electronic mail advertisement" means an electronic
message containing an advertisement that is sent via the internet,
the principal purpose of which is the advertising, promoting, or
marketing of any good, service, or enterprise to the recipients.
(5) "Electronic mail service provider" means any person that
is an intermediary in sending and receiving electronic mail and
provides to users of electronic mail services the ability to send
or receive electronic mail.
(6) "Internet" means a hierarchy of computer networks and
systems that includes, but is not limited to, commercial networks
(.com or .co), government networks (.gov), military networks
(.mil), university networks (.ac or .edu), and other research
networks (.org or .net) and spans many different physical networks
and systems around the world.
(7) "Originating address" means the string of characters
used to specify the source of any electronic mail message.
(8) "Receiving address" means the string of characters used
to specify the recipient of any electronic mail message.
(9)
"Recipient" means a person who receives an item of
electronic
mail or an electronic mail advertisement.
(B) No person shall use a computer, a computer network, or
the computer services of an electronic mail service provider to
transmit an electronic mail advertisement in contravention of the
authority granted by, or in violation of the policies set by, the
electronic mail service provider. This division shall not apply
to any of the following:
(1) A person, including an interactive computer service,
that provides users with access to a computer network and, as a
condition of providing the access, requires users to receive
unsolicited advertisements;
(2) Electronic mail advertisements that are accessed by the
recipient from an electronic bulletin board;
(3) The transmission of an electronic mail advertisement
from an organization or similar entity to a member of the
organization or similar entity.
(C)(1)
Except as otherwise provided in divisions (B) and
(I) of
this
section, a person that transmits or causes to be
transmitted
to a
recipient an electronic mail advertisement shall
clearly
and conspicuously provide both of the following to the
recipient at the same time as the transmission of the electronic
mail advertisement:
(a) The individual or business name, complete residence or
business
address, and electronic mail
address of the person
transmitting the electronic mail advertisement;
(b) A notice that the recipient may decline to receive from
the person
transmitting the electronic mail advertisement any
additional
electronic mail advertisements
and a detailed
procedure
for
declining to receive any electronic mail advertisements.
(2) If
the recipient of an electronic mail advertisement
uses the
procedure contained in the notice described in division
(C)(1)(b) of this section to
decline to receive the type of
electronic mail advertisement that is contained
in the notice, the
person
that transmitted the original electronic mail advertisement
shall not
transmit to the recipient any additional electronic
mail advertisements.
(D) No person shall use a computer, a computer program, a
computer network, or the computer services of an electronic mail
service provider with the intent to forge the originating address
or other routing information in any manner in connection with the
transmission of an electronic mail advertisement through or into
the network of an electronic mail service provider or its
subscribers.
(E) No person shall knowingly give, sell, or otherwise
distribute or possess with the intent to sell, give, or distribute
a computer program or computer software that facilitates or
enables the forgery of the originating address or other routing
information for the purpose of sending an electronic mail
advertisement through or into the facilities of an electronic mail
service provider or its subscribers.
(F) No internet service provider shall be liable for
transmitting another person's electronic mail advertisement
through its network nor for any action voluntarily taken in good
faith to block the receipt or transmission through its service of
any electronic mail advertisement that it believes is, or will be
sent, in violation of its policies. An internet service provider
may disconnect or terminate the service of any person that is in
violation of the internet service provider's policies.
(G)
If a person violates division (B) or (C) of this
section, the
recipient of the electronic mail advertisement
transmitted in violation of either of those
divisions may
bring a
civil action against that person to enforce
that division.
The
recipient who brings a civil action under this
division may
recover both of the following:
(1) Actual damages or damages of ten dollars per
electronic
mail advertisement received in violation of division
(B) or (C) of
this
section, whichever
is greater;
(2) Attorney's fees, court costs, and other costs of
bringing the
action.
(H) In addition to any other recovery that is allowed
pursuant to
division (G) of this section, the recipient of
an
electronic mail
advertisement transmitted in violation of this
section may apply to
the court
of common pleas in the county in
which the recipient resides for an order
enjoining the person who
transmitted that electronic mail advertisement from
transmitting
to the
recipient any other electronic mail
advertisement.
(I) A person is not liable to a recipient for civil damages
under
this section if
the person transmits or causes to be
transmitted to the recipient an
electronic mail advertisement if
one of the following applies:
(1) The person has a preexisting business or personal
relationship
with the recipient.
(2) The recipient has expressly consented to receive the
item of
electronic mail from the person.
(J) Whoever violates division (D) of this section is guilty
of using a computer program or computer software to forge an
originating address, a felony of the fifth degree.
(K) Whoever
violates division (E) of this section is guilty
of distributing a
computer program or computer software used to
forge an originating
address, a misdemeanor of the fourth degree.
(L) Each use or
distribution of a computer program or
computer software in
violation of division (D) or (E) of this
section is a separate
offense.